항공물건운송에 관한 상법 항공운송편 규정의 문제점 및 개선방안
A Study on the Problems and Resolutions of Provisions in Korean Commercial Law related to the Air Freight Transport
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Recently, an aircraft has been one of the most important transportation means because of rapid development of aeronautical techniques and globalization, and air transport has been increased to a great extent. Most of the countries have their own domestic law to deal with private legal problems related to the air transport and aircraft operation. Republic of Korea also has the Air Transport provisions in Commercial Law which was enacted and gone into effect in 2011. The Air Transport Provisions of Korean Commercial Law was enacted to regulate problems of domestic carriage by air or ones that cannot be solved by related international conventions. The Air Transport Provisions of Korean Commercial Law has a good point of adopting the global standard of international conventions such as 1999 Montreal Convention to amend Warsaw System, but it also has a bad point of having the problems of those conventions. Therefore, there are some contents to be modified in the Air Transport Provisions of Korean Commercial Law. Above all, there are some problems to be improved there in terms of some clauses for the air freight carrier's liability of compensation for damages. First, the unbreakable rule that can make the air freight carrier assert limitation of liability in case that he or she has intention to cause damages to freights should be amended not to permit limitation of liability of the carrier at the mentioned case, because it is not rational to permit it at the above case containing some demerits. Second, it is necessary to expand enacting the Himalaya Clause to protect an independent contractor like the air freight forwarder functioning as a genuine mediator in the process of air freight transport. Third, it is necessary to delete the provision of making the effect that receipt by the person entitled to delivery of checked baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition, because it does not make any substantial effect. Fourth, the requirement of preventing extinction of a claim for damages "Ak-Wui" is desirable to be changed into the term of "Sa-Hae-Hang-Ui", for the term of "Ak-Wui" generally means the case knowing some facts in Korean private law and the term of "Sa-Hae-Hang-Ui" has more similar meaning to "fraud" in the provisions of Montreal Convention(1999) adopted into the ones of Korean Commercial Law. Fifth, it is necessary to discuss amending the clause which make the right of disposition of the air freight carrier cease on arrival of the cargo at the place of destination, so that it stops at the later period like time of consignee's receipt of the cargo, because it is useful to help a consignor and the carriage agreement of Korean main air transport corporations provide that. It is desired that the Air Transport Provisions in Korean Commercial Law including the clauses related to the liability of compensation for damages of the air freight carrier be developed continually through amendments including the resolutions about the problems mentioned above.
Abstract
Recently, an aircraft has been one of the most important transportation means because of rapid development of aeronautical techniques and globalization, and air transport has been increased to a great extent. Most of the countries have their own domestic law to deal with private legal problems related to the air transport and aircraft operation. Republic of Korea also has the Air Transport provisions in Commercial Law which was enacted and gone into effect in 2011. The Air Transport Provisions of Korean Commercial Law was enacted to regulate problems of domestic carriage by air or ones that cannot be solved by related international conventions. The Air Transport Provisions of Korean Commercial Law has a good point of adopting the global standard of international conventions such as 1999 Montreal Convention to amend Warsaw System, but it also has a bad point of having the problems of those conventions. Therefore, there are some contents to be modified in the Air Transport Provisions of Korean Commercial Law. Above all, there are some problems to be improved there in terms of some clauses for the air freight carrier's liability of compensation for damages. First, the unbreakable rule that can make the air freight carrier assert limitation of liability in case that he or she has intention to cause damages to freights should be amended not to permit limitation of liability of the carrier at the mentioned case, because it is not rational to permit it at the above case containing some demerits. Second, it is necessary to expand enacting the Himalaya Clause to protect an independent contractor like the air freight forwarder functioning as a genuine mediator in the process of air freight transport. Third, it is necessary to delete the provision of making the effect that receipt by the person entitled to delivery of checked baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition, because it does not make any substantial effect. Fourth, the requirement of preventing extinction of a claim for damages "Ak-Wui" is desirable to be changed into the term of "Sa-Hae-Hang-Ui", for the term of "Ak-Wui" generally means the case knowing some facts in Korean private law and the term of "Sa-Hae-Hang-Ui" has more similar meaning to "fraud" in the provisions of Montreal Convention(1999) adopted into the ones of Korean Commercial Law. Fifth, it is necessary to discuss amending the clause which make the right of disposition of the air freight carrier cease on arrival of the cargo at the place of destination, so that it stops at the later period like time of consignee's receipt of the cargo, because it is useful to help a consignor and the carriage agreement of Korean main air transport corporations provide that. It is desired that the Air Transport Provisions in Korean Commercial Law including the clauses related to the liability of compensation for damages of the air freight carrier be developed continually through amendments including the resolutions about the problems mentioned above.
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